REAL ESTATE MORTGAGE
Exhibit
10.4
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STATE
OF ALABAMA
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COUNTY
OF MOBILE
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THIS
INDENTURE made this 31st
day of
May, 2006, by and between MAGNETECH INDUSTRIAL SERVICES OF ALABAMA, LLC, whose
address is 0000 Xxxxx Xxxxxx Xx., Xxxxx Xxxx, Xxxxxxx 00000, (hereinafter called
"Borrower"), Mortgagor, and LAURUS CAPITAL MANAGEMENT, L.L.C., whose address
is
000 0xx
Xxxxxx,
00xx
Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000 (hereinafter called "Lender"), Mortgagee:
R
E C I T
A L S:
WHEREAS,
Borrower is justly indebted to Lender in the principal sum of ONE MILLION SIX
HUNDRED THOUSAND AND NO/100 DOLLARS, ($1,600,000.00) as evidenced by a certain
Promissory Note of even date herewith, payable in accordance with the terms
and
conditions set forth therein (hereinafter called "Promissory
Note").
W
I T N E
S S E T H:
NOW
THEREFORE, KNOW ALL MEN BY THESE PRESENTS that the undersigned, in consideration
of the indebtedness above mentioned, and to secure the prompt payment of same,
with interest thereon, and any extensions, modifications or renewals of same,
and further to secure the performance of the covenants, conditions and
agreements hereinafter set forth, and in the Promissory Note and all other
documents evidencing, securing, guaranteeing or executed in connection
therewith, (hereinafter "Loan Documents", all of the terms of which are
incorporated herein by reference) has bargained and sold and does hereby GRANT,
BARGAIN, SELL and CONVEY unto Lender, its successors and assigns, the following
described land, real estate, buildings and improvements, fixtures, furniture
and
other personal property (which together with any additional such property
hereafter acquired by Borrower and subject to the lien of this Mortgage is
hereinafter referred to as the "Mortgaged Property"), to-wit:
A. all
right, title and interest of the Borrower in, to, under and derived from that
tract or parcel of land described on Exhibit “A” which is attached hereto and
incorporated herein by reference (the "Premises");
1.
B. all
buildings, structures and improvements of every kind whatsoever now or hereafter
situated on the Mortgaged Property described in Exhibit “A” and all fixtures,
fittings, buildings, materials, machinery, equipment, furniture, furnishings
and
personal property of every nature whatsoever now or hereafter owned by Borrower
and located in, on and used
in
connection with or with the operation of said Premises, buildings, structures
or
other improvements, including all extensions, additions, improvements,
betterments, renewals and replacements to any of the foregoing;
C. all
easements, rights of way, rights of ingress and egress, gores of land, streets,
ways, alleys, passages, sewer rights, waters, water courses, water rights and
powers, and all estates, rights, titles, interest, privileges, liberties,
tenements, hereditaments and appurtenances whatsoever, in any way belonging,
relating or appertaining to any of the Mortgaged Property hereinabove described,
or which hereafter shall in any way belong, relate or be appurtenant thereto,
whether now owned or hereafter acquired by Borrower, and the reversion and
reversions, remainder and remainders, rents, issues, profits thereof, and all
the estate, right, title, interest, property, possession, claim and demand
whatsoever at law, as well as in equity, of Borrower of, in and to the same,
including but not limited to: (i) all rents, profits, issues and revenues of
the
Mortgaged Property from time to time accruing, whether under leases or tenancies
now existing or hereafter created, reserving to Borrower, however, so long
as
Borrower is not in Default hereunder, the right to receive and retain the rents,
issues and profits thereof; and (ii) all judgments, awards of damages and
settlements hereafter made resulting from condemnation proceedings or the taking
of the premises or any part thereof under the power of eminent domain, or for
any damage (whether caused by such taking or otherwise) to the Premises or
the
improvements thereon or any part thereof, or to any rights appurtenant thereto,
including any award for change of grade or streets. Lender is hereby authorized
on behalf and in the name of Borrower to execute and deliver valid acquittances
for, and appeal from, any such judgments or awards. Lender may apply all such
sums or any part thereof so received, after the payment of all its expenses,
including costs and attorney's fees, on the indebtedness secured hereby in
such
manner as it elects, or at its option, the entire amount or any part thereof
so
received may be released to Borrower;
D. all
proceeds, cash or non-cash (including, but not limited to, all inventory,
accounts, chattel paper, documents, instruments, tort and insurance proceeds,
equipment, fixtures, consumer goods and general intangibles with cash proceeds
of any of the property described above), of any of the foregoing types or items
of property described above;
PROVIDED,
HOWEVER, that these presents are upon the condition that, if Borrower shall
pay
or cause to be paid to Lender the principal and interest payable in respect
to
the Promissory Note, and shall keep, perform and observe all the covenants
and
promises in the Promissory Note, and any renewal, extensions or modifications
thereof, the Loan Documents and this Mortgage expressed to be kept, performed
and observed by and on the part of Borrower, then this Mortgage and all the
2.
properties,
interest and rights herein granted, bargained and sold shall cease, terminate
and be void, but shall otherwise remain in full force and effect.
AND,
Borrower covenants and agrees with Lender as follows:
ARTICLE
I
1.01
PERFORMANCE OF NOTE AND MORTGAGE. Borrower will perform, observe and comply
with
all provisions hereof and of the Loan Documents and of the Promissory Note
secured hereby and thereby and will duly and punctually pay to Lender the sum
of
money expressed in the Promissory Note with interest thereon and all other
sums
required to be paid by Borrower pursuant to the provisions of this Mortgage,
all
without any deductions or credit for taxes or other similar charges paid by
Borrower.
1.02
WARRANTY OF TITLE. Borrower is lawfully seized of an indefeasible fee simple
estate in the Mortgaged Property and has good and absolute title to all property
hereby mortgaged or pledged and has full power and lawful authority to sell,
convey and mortgage the same in the manner and form aforesaid; that the same
is
free and clear of all liens, charges and encumbrances whatsoever, and that
Borrower shall and will warrant and forever defend the title thereto unto
Lender, it successors and assigns, against the lawful claims of all persons
or
entities whatsoever, except as shown, if applicable, in Exhibit "B" attached
hereto.
1.03
MONTHLY
TAX DEPOSITS. If required by Lender following an Event of Default or Default,
Borrower will pay to Lender at the same time as the scheduled payments due
under
the Promissory Note, together with and in addition to the regular installment
of
principal and interest, until the Promissory Note is fully paid, an amount
equal
to one-twelfth (1/12) of the yearly taxes and assessments as estimated by Lender
to be sufficient to enable Lender to pay at least thirty (30) days before they
become due, all taxes, assessments and other similar charges against the
Mortgaged Property or any part thereof. Such added payments shall not be, nor
be
deemed to be, trust funds, but may be commingled with the general funds of
Lender, and no interest shall be payable in respect thereof. Upon demand of
Lender, Borrower agrees to deliver to Lender such additional monies as are
necessary to make up any deficiencies in the amounts necessary to enable Lender
to pay such taxes, assessments and similar charges. In the event of a Default
by
Borrower in the performance of any of the terms, covenants or conditions in
the
Promissory Note, Mortgage or other Loan Documents, Lender may apply to the
reduction of the sums secured hereby, in such manner as Lender shall determine,
any amount under this Paragraph 1.03 of Article I remaining to Borrower's
credit.
3.
1.04
OTHER TAXES, UTILITIES AND LIENS.
A. Borrower
will pay promptly, when and as due, and will promptly exhibit to Lender receipts
for the payment of all taxes, assessments, water rates, dues, charges, fines
and
impositions of every nature whatsoever imposed, levied or assessed or to be
imposed, levied or assessed upon or against the Mortgaged Property or any part
thereof, or upon the interest of Lender in the Mortgaged Property (other than
any of the same for which provision has been made in Paragraph l.03 of this
Article I), as well as all income taxes, assessments and other governmental
charges lawfully levied and imposed by the United States of America or any
state, county, municipality, borough or other taxing authority upon Borrower
or
in respect of the Mortgaged Property or any part thereof, or any charge which,
if unpaid, would become a lien or charge upon the Mortgaged Property prior
to or
equal to the lien of the Mortgage for any amounts secured hereby or would have
priority or equality with the Mortgage in distribution of the proceeds of any
foreclosure sale of the Mortgaged Property or any part thereof.
B. Borrower
will promptly pay all charges by utility companies, whether public or private,
for electricity, gas, water, sewer or other utilities.
C. Borrower
shall promptly pay and will not suffer any mechanic's, laborer's statutory
or
other lien which might or could be prior to or equal to the lien of the Mortgage
to be created or to remain outstanding upon any of the Mortgaged Property.
1.05
INSURANCE. Borrower will procure for, deliver to and maintain for the benefit
of
Lender, during the life of this Mortgage, insurance policies in such amounts
as
Lender shall require, insuring the Mortgaged Property against fire, extended
coverage and such other insurable hazards, casualties and contingencies as
Lender may require. The form of such policies and the companies issuing them
shall be acceptable to Lender. All policies shall contain a New York standard
non-contributory mortgagee endorsement making losses payable to Lender. At
least
fifteen (15) days prior to the expiration date of all such policies, renewals
thereof satisfactory to Lender shall be delivered to Lender. Borrower shall
deliver to Lender a receipt evidencing the payment of all such insurance
policies and renewals. In the event of the foreclosure of this Mortgage or
any
other transfer of title to the Mortgaged Property in extinguishment of the
indebtedness secured hereby, all right, title and interest of Borrower in and
to
all insurance policies then in force shall pass to the purchaser or grantee.
If
an
Event of Default or Default shall have occurred, Lender is authorized and
empowered, at its option, to adjust or compromise any loss under any insurance
policies on the Mortgaged Property, and to collect and receive the proceeds
from
any such policy or policies. Each insurance company is hereby authorized and
directed, under such conditions, to make payments for all such losses, directly
to Lender instead of to Borrower and Lender jointly. After deducting from
4.
said
insurance proceeds any expenses incurred by it in the collection or handling
of
said fund, Lender may apply the net proceeds, at its option, either toward
restoring the improvements, or as a credit on any portion of the Mortgage
indebtedness selected by it, whether then matured or to mature in the future,
or
at the option of Lender, such sums either wholly or in part may be paid over
to
Borrower to be used to repair such buildings, or to build new buildings in
their
place, or for any other purpose or object satisfactory to Lender, without
affecting the lien of the Mortgage for the full amount secured hereby before
such payment took place. Lender shall not be held responsible for any failure
to
collect any insurance proceeds due under the terms of any policy regardless
of
the cause of such failure.
If
required by Lender following an Event of Default or Default, Borrower will
pay
to Lender at the same time as the scheduled payments due under the Promissory
Note, together with and in addition to the regular installment of principal
and
interest and monthly tax deposit (as required by Paragraph 1.03 of Article
I
herein) until the Promissory Note is fully paid, an amount equal to one-twelfth
(1/12) of the yearly premiums for insurance. Such amount shall be used by Lender
to pay such insurance premiums when due. Such added payments shall not be,
nor
be deemed to be, trust funds, but may be commingled with the general funds
of
Lender and no interest shall be payable in respect thereof. Upon demand of
Lender, Borrower agrees to deliver to Lender such additional monies as are
necessary to make up any deficiencies in the amounts necessary to enable Lender
to pay such insurance premiums. In the event of a Default by Borrower in the
performance of any of the terms, covenants and conditions in the Promissory
Note
or Mortgage, Lender may apply to the reduction of the sums secured hereby,
in
such manner as Lender shall determine, any amount paid in accordance herewith
remaining to Borrower's credit.
If
the
Mortgaged Property is ever designated as a part of a flood plain area or any
other designation which would make such Mortgaged Property subject to the
Federal Flood Insurance Act of 1968, as amended heretofore or hereafter, or
any
similar law, then Borrower agrees to do everything reasonably possible to comply
with the requirements of said law (including all regulations and other
requirements applicable thereto) in order that flood insurance will be available
to said Borrower. Thereafter, Borrower agrees to obtain for the benefit of
Lender an insurance policy satisfactory to Lender in all respects (including
amount, insurer, form and otherwise), to deliver such policy to Lender as soon
as possible, to pay all expenses in connection therewith and to maintain such
insurance in full force and effect at all times at Borrower's
expense.
1.06
CONDEMNATION. If all of the Mortgaged Property shall be damaged or taken through
condemnation (which term as used in this Mortgage shall include any damage
or
taking by any governmental authority, and any transfer by private sale in lieu
thereof), either temporarily or permanently, the entire indebtedness secured
hereby shall at the option of Lender become immediately due and payable. Lender
shall be entitled to all compensation, appear in and prosecute, in its own
or
the Borrower's name, any action or proceeding relating to any condemnation,
and
to settle or compromise any claim in connection therewith. All such
compensation, awards, damages,
5.
claims,
rights of action and proceeds and the right thereto are hereby assigned by
Borrower to Lender who, after deducting therefrom all its expenses, including
attorney's fees, may release any monies so received by it without affecting
the
lien of this Mortgage or may apply the same in such manner as Lender shall
determine to the reduction of the sums secured hereby, and any balance of such
monies then remaining shall be paid to Borrower. Borrower agrees to execute
such
further assignment of any compensations, awards, damages, claims, rights of
action and proceeds as Lender may require.
Notwithstanding
the foregoing, if there is a partial taking such that the Mortgaged Property
can
be repaired and made tenantable, Lender, after deducting its expenses, including
reasonable attorney's fees, shall apply the balance of such award, or so much
thereof as is necessary, to pay the cost of restoring the Mortgaged Property
as
nearly as possible to its condition prior to such taking; and the balance,
if
any, shall be applied to the reduction of the indebtedness hereby
secured.
1.07
CARE
OF THE PROPERTY.
A. Borrower
will preserve and maintain the Mortgaged Property in good condition and repair
and will not commit or suffer any waste and will not do or suffer to be done
anything which will increase the risk of fire or other hazard to the Mortgaged
Property or any part thereof.
B. If
the
Mortgaged Property or any part thereof is damaged by fire or any other cause,
Borrower will give immediate written notice of the same to Lender.
C. Lender
is
hereby authorized to enter upon and inspect the Mortgaged Property at any time
during normal business hours.
D. Borrower
will promptly comply with all present and future laws, ordinances, rules and
regulations of any governmental authority affecting the Mortgaged Property
or
any part thereof.
E. Borrower
represents, warrants and covenants as follows:
1. no
Hazardous Materials (hereinafter defined) have been, are or will be while any
part of the indebtedness secured by the Mortgage remains unpaid, contained
in,
treated, stored, handled, located on, discharged from or disposed of on, or
constitute a part of, the Mortgaged Property. As used herein, the term
"Hazardous Materials" includes without limitation, any asbestos, urea
formaldehyde foam insulation, flammable explosives, radioactive materials,
hazardous materials defined, regulated, controlled, limited or prohibited in
the
Comprehensive Environmental Response Compensation and Liability Act of 1980
(CERCLA), as amended (42 U.S.C. Sections 9601, et
seq.),
the
Hazardous Materials Transportation Act, as amended (49 U.S.C. Sections 1801
et
seq.),
the
Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. Sections
6901 et
seq.),
the
Clean Water Act, as amended (33 U.S.C. Sections 1251, et
seq.),
the
Clean Air Act, as amended (42 U.S.C. Sections 7401 et
seq.),
the
Toxic Substances Control Act, as amended (15 U.S.C.
6.
Sections
2601 et
seq.),
and in
the rules and regulations adopted and publications promulgated pursuant thereto,
and in the rules and regulations of the Occupational Safety Health
Administration (OSHA) pertaining to occupational exposure to asbestos, as
amended, or in any other federal, state or local environmental law, ordinance,
rule, or regulation now or hereafter in effect;
2. no
underground storage tanks, whether in use or not in use, are located in, on
or
under any party of the Mortgaged Property;
3. the
Mortgaged Property complies and will comply in all respects with applicable
environmental laws, rules, regulations, and court or administrative
orders;
4. there
are
no pending claims or threats of claims by private or governmental or
administrative authorities relating to environmental impairment, conditions,
or
regulatory requirements with respect to the Mortgaged Property;
5. borrower
shall give immediate oral and written notice to Lender of its receipt of any
notice of a violation of any law, rule or regulation covered hereby, or of
any
notice of other claim relating to the environmental condition of the Mortgaged
Property or of its discovery of any matter which would make the representations,
warranties and/or covenants herein to be inaccurate or misleading in any
respect;
6. the
Borrower promptly shall comply with all present and future laws, ordinances,
rules, regulations, orders and decrees of any governmental authority affecting
the Mortgaged Property or any part thereof. Without limiting the foregoing,
the
Borrower represents and covenants that the Mortgaged Property is in present
compliance with, and in the future shall comply with, as applicable, the
Americans With Disabilities Act of 1990, ("ADA") (42 U.S.C. Sections 12101,
et
seq.)
and the
Rehabilitation Act of 1973 ("Rehabilitation Act") (29 U.S.C. Sections 749
et
seq.)
each
such Act as amended from time to time, and in the rules and regulations adopted
and publications promulgated pursuant thereto;
7. borrower
hereby agrees to indemnify and hold Lender harmless from all loss, cost, damage,
claim and expense incurred by Lender on account of (a) the violation of any
representation, warranty, and covenant set forth herein, (b) Borrower's failure
to perform any obligations of this Paragraph 1.07 (E.) (c) Borrower's failure
or
the Mortgaged Property's failure to fully comply with all environmental laws,
rules and regulations or all other occupational health and safety laws, rules
and regulations, with ADA or the Rehabilitation Act as applicable, or (d) any
other matter related to environmental conditions on, under or affecting the
Mortgaged Property. This indemnification shall survive the closing of the Loan,
payment of the Loan, the exercise of any right or remedy under any Loan
Documents, any subsequent sale or transfer of the Mortgaged Property, and all
similar or related events or occurrences.
7.
F. If
all or
any part of the Mortgaged Property shall be damaged by fire or other casualty,
Borrower will promptly restore the Mortgaged Property to the equivalent of
its
original condition, regardless of whether or not there shall be any insurance
proceeds therefor. If a part of the Mortgaged Property shall be physically
damaged through condemnation, Borrower will promptly restore, repair or alter
the remaining Mortgaged Property in a manner satisfactory to Lender. Both of
these requirements are contingent upon Lender making available to Borrower
the
full amount of any insurance proceeds relating to such damage.
1.08
FURTHER ASSURANCES.
A. At
any
time, and from time to time, upon request by Lender, Borrower will make, execute
and deliver or cause to be made, executed and delivered to Lender and, where
appropriate, to cause to be recorded and/or filed and from time to time
thereafter to be re-recorded and/or refiled at such time and in such offices
and
places as shall be deemed desirable by Lender, any and all such other and
further mortgages, instruments of further assurance, certificates and other
documents as may, in the opinion of Lender, be necessary or desirable in order
to effectuate, complete, enlarge, or perfect, or to continue and preserve the
obligation of Borrower under the Promissory Note, this Mortgage and the Loan
Documents, and the lien of this Mortgage as a first and prior lien upon all
of
the Mortgaged Property, whether now owned or hereafter acquired by Borrower.
Upon any failure by Borrower so to do, Lender may make, execute and record
any
and all such mortgages, instruments, certificates and documents for and in
the
name of Borrower, and Borrower hereby irrevocably appoints Lender the agent
and
attorney-in-fact of Borrower so to do. The lien hereof will automatically
attach, without further act, to all after acquired property attached to and/or
used in the operation of the Mortgaged Property or any part
thereof.
B. The
Lender also shall have and hereby is granted a security interest in all monies,
securities and other property of the Borrower, now or hereafter assigned, held,
received, or coming into the possession, control, or custody of the Lender
by or
for the account of the Borrower (including indebtedness due from the Lender
to
the Borrower, and any and all claims of Borrower against Lender, at any time
existing) whether expressly as collateral security, custody, pledge,
transmission, collection or for any other purpose, and also upon any and all
deposit balances, including any dividends declared, or interest accruing
thereon, and proceeds thereof. On an Event of Default, the Lender may, in
addition to any other rights provided by this Mortgage or any of the other
Loan
Documents, but shall not be obligated to, apply to the payment of the Loan
or
Other Indebtedness secured hereby, and in such manner as the Lender may
determine, any such monies, securities or other property held or controlled
by
the Lender. No such application of funds shall, unless otherwise expressly
agreed by the Lender in writing, reduce, alter, delay or otherwise affect any
regularly scheduled payment with respect to the Loan or such Other Indebtedness
or obligations.
1.09
LEASES AFFECTING MORTGAGED PROPERTY. Borrower will comply with and observe
its
obligations as landlord under all leases affecting the Mortgaged Property or
any
part
8.
thereof.
If requested by Lender, Borrower will furnish Lender with executed copies of
all
leases now or hereafter created on said premises; and all leases now or
hereafter entered into will be in form and substance subject to the approval
of
Lender. Borrower will not accept payment of rent more than one month in advance
without the express written consent of Lender. If requested by Lender, Borrower
will assign to Lender as additional security, any and all such leases whether
now existing or hereafter created, including without limitation, all rents,
royalties, issues and profits of the premises from time to time accruing, and
will not cancel, surrender or modify any lease so assigned without the written
consent of Lender.
1.10
EXPENSES. Borrower will pay or reimburse Lender for all reasonable attorney's
fees, costs and expenses incurred by Lender in any proceeding involving the
estate of a decedent or an insolvent, or in any action, proceeding or dispute
of
any kind in which Lender is made a party, or appears as party plaintiff or
defendant, affecting the Promissory Note, Mortgage, other Loan Documents,
Borrower or Mortgaged Property, including but not limited to, the foreclosure
of
this Mortgage, any condemnation action involving the Mortgaged Property, or
any
action to protect the security hereof; and, any such amounts paid by Lender
shall be added to the indebtedness and secured by the lien of this Mortgage.
1.11
PERFORMANCE BY LENDER OF DEFAULTS BY BORROWER. If Borrower shall Default in
the
payment of any tax, lien, assessment or charge levied or assessed against the
Mortgaged Property; in the payment of insurance premiums, in the procurement
of
insurance coverage and the delivery of the insurance policies required
hereunder, or in the performance or observance of any other covenant, condition
or term of this Mortgage, then Lender, at its option, may perform or observe
the
same and all payments made for costs or incurred by Lender in connection
therewith, shall be secured hereby and shall be, upon demand, immediately repaid
by Borrower to Lender with interest thereon at the rate stated in the above
described Promissory Note. Lender is hereby empowered to enter and to authorize
others to enter upon the Mortgaged Property or any part thereof for the purpose
of performing or observing any such Default, covenant, condition or term,
without thereby becoming liable to Borrower or any person in possession holding
under the Borrower.
1.12 INSPECTIONS.
Lender shall have the right, and Borrower shall allow Lender, at all times
to
inspect the Mortgaged Property, and shall permit Lender and its authorized
representative: (a) to visit, examine, inspect and make extracts from books
and
records of Borrower and will discuss with Lender or its representatives the
affairs, finances and accounts of Borrower; and (b) to inspect the Mortgaged
Property at such reasonable times and as often as may be reasonably requested.
Any such inspection shall be solely for the benefit of Lender and neither
Borrower nor any third party shall be entitled to claim any loss or damage
as a
result either of such inspections or the failure to make the same. Borrower
shall provide Lender with such financial information as Lender may require,
including without limitation, such financial statements and other information
as
set out in the Loan Agreement executed in connection herewith.
9.
1.13 ESTOPPEL
CERTIFICATES. Borrower shall furnish, within ten (10) days after written request
from the Lender, a written statement, duly acknowledged, setting forth the
unpaid rent, if any, and whether or not any offsets or demands exist
thereto.
1.14 ALIENATION
OR SALE OF MORTGAGED PROPERTY. Borrower shall not transfer, assign, sell,
mortgage, encumber or otherwise convey all or any portion of the Mortgaged
Property, without the Lender's prior written consent, which consent may be
approved or refused in Lender's sole discretion but shall not be unreasonably
withheld. A change in ownership of Borrower shall constitute a sale of the
Mortgaged Property.
ARTICLE
II
2.01
EVENT OF DEFAULT. The term "Event of Default" or "Default" wherever used in
this
Mortgage shall mean any one or more of the following events:
(a) the
occurrence of an "Event of Default" as used and defined in the Loan Agreement
or
any other Loan Document; or
(b) if
Borrower shall fail to perform or observe any other covenant, agreement, or
provision of this Mortgage, or a breach in any material respect shall exist
in
any representation or warranty herein contained; or
(c) the
failure to make any payment of principal or interest or any other charge under
the Promissory Note as and when the same becomes due and payable;
or
(d) the
sale
or other transfer of all or any portion of the Mortgaged Property, or any
interest therein without the Lender's prior written consent, which consent
may
be granted or refused in Lender's sole discretion but shall not be unreasonably
withheld; or
(e) the
creation or suffering to exist by Borrower of any lien or encumbrance on the
Mortgaged Property, other than the lien of this Mortgage, the lien for ad
valorem taxes not then delinquent, and matters set forth on Exhibit "B", if
any,
unless the written consent of the Lender is first obtained, which consent may
be
granted or refused by the Lender in its sole discretion but shall not be
unreasonably withheld.
2.02 ACCELERATION
OF MATURITY. If an Event of Default or Default shall have occurred, then the
entire principal amount of the indebtedness secured hereby with interest accrued
thereon shall, at the option of Lender, become due and payable without notice
or
demand, time being
10.
of
the
essence; and any omission on the part of Lender to exercise such option when
entitled to do so shall not be considered as a waiver of such
right.
2.03
RIGHT OF LENDER TO ENTER AND TAKE POSSESSION. If an Event of Default shall
have
occurred and be continuing, Borrower, upon demand of Lender, shall forthwith
surrender to Lender the actual possession, and to the extent permitted by law,
Lender may enter and take possession of all the Mortgaged Property and may
exclude Borrower and Borrower's agents and employees wholly therefrom. Upon
every such entering upon or taking of possession, Lender may hold, store, use,
operate, manage and control the Mortgaged Property and conduct the business
thereof and, from time to time (a) make all necessary and proper maintenance,
repairs, renewals, replacements, additions, betterments and improvements thereto
and thereon and purchase or otherwise acquire additional fixtures, personalty
and other property; (b) insure or keep the Mortgaged Property insured; (c)
manage and operate the Mortgaged Property and exercise all the rights and powers
of Borrower in its name or otherwise, with respect to the same; (d) enter into
any and all agreements with respect to the exercise by others of any of the
powers herein granted Lender, all as Lender from time to time may determine
to
be to its best advantage; (e) Lender may collect and receive all the income,
revenues, rents, issues and profits of the same, including those past due as
well as those accruing thereafter, and, after deducting (i) all expenses of
taking, holding, managing and operating the Mortgaged Property (including
compensation for the services of all persons employed for such purposes); (ii)
the cost of all such maintenance, repairs, renewals, replacements, additions,
betterments, improvements and purchases and acquisitions; (iii) the cost of
such
insurance; (iv) such taxes, assessments and other charges prior to the lien
of
this Mortgage as Lender may determine to pay; (v) other proper charges upon
the
Mortgaged Property or any part thereof; and (vi) the reasonable compensation,
expenses and disbursements of the attorneys and agents of Lender. Lender shall
apply the remainder of the monies so received by Lender, first, to the payment
of accrued interest, then, to the payment of the deposits required in Paragraphs
1.03 and 1.05 and, finally, to the payment of overdue installments of interest
and/or principal. Whenever all such Events of Default have been cured and
satisfied, Lender may, at its option, surrender possession of the Mortgaged
Property to Borrower, Borrower, its successors and assigns. The same right
of
taking possession, however, shall exist if any subsequent Event of Default
shall
occur and be continuing.
2.04
RECEIVER. If an Event of Default shall have occurred and be continuing, Lender,
upon application to a court of competent jurisdiction, shall be entitled,
without notice and without regard to the adequacy of any security for the
indebtedness hereby secured or the solvency or any party bound for its payment,
to the appointment of a receiver to take possession of and to operate the
Mortgaged Property and to collect the rents, profits, issues and revenues
thereof. Borrower will pay to Lender upon demand, all expenses, including
receiver's fees, attorney's fees, costs and agent's compensation, incurred
pursuant to the provisions contained in this Paragraph 2.04; and all such
expenses shall be secured by this Mortgage.
11.
2.05
LENDER'S POWER OF ENFORCEMENT. If an Event of Default shall have occurred and
be
continuing, Lender may, either with or without entry or taking possession as
hereinabove provided or otherwise, proceed by suit or suits at law or in equity
or any other appropriate proceeding or remedy (a) to enforce payment of the
Promissory Note or the performance of any term thereof or any other right;
(b)
to foreclose this Mortgage and to sell, as an entirety or in separate lots
or
parcels, the Mortgaged Property, as provided by law; and (c) to pursue any
other
remedy available to it, all as Lender shall deem most effectual for such
purposes. Lender shall take action either by such proceedings or by the exercise
of its powers with respect to entry or taking possession, as Lender may
determine.
2.06
POWER OF SALE. If an Event of Default shall have occurred, Lender may sell
the
Mortgaged Property at public outcry to the highest bidder for cash in front
of
the Courthouse door in the county where said Mortgaged Property is located,
either in person or by auctioneer, after having first given notice of the time,
place and terms of sale together with a description of the Mortgaged Property
to
be sold, by publication once a week for three (3) consecutive weeks prior to
said sale in some newspaper published in said county and, upon payment of the
purchase money, Lender or any person conducting the sale for Lender is
authorized to execute to the purchaser at said sale a deed to the premises
so
purchased. Lender may bid at said sale and purchase said premises, or any part
thereof, if the highest bidder therefor. At the foreclosure sale, the Mortgaged
Property may be offered for sale and sold as a whole without first offering
it
in any other manner, or the Mortgaged Property may be offered for sale and
sold
in any other manner Lender may elect.
2.07
APPLICATION OF FORECLOSURE PROCEEDS. The proceeds of any foreclosure pursuant
to
Paragraph 2.06 of Article II shall be applied as follows:
(a) first,
to
the expenses of making the sale, including a reasonable attorney's fee for
such
services as may be necessary in the collection of said indebtedness or the
foreclosure of this Mortgage;
(b) second,
to the repayment of any monies, with interest thereon, which Lender may have
paid, or become liable to pay, or which it may then be necessary to pay for
taxes, insurance, assessments or other charges, liens or debts as hereinabove
provided;
(c) third,
to
the payment and satisfaction of the indebtedness hereby specially secured with
interest to date of sale;
(d) fourth,
the balance, if any, shall be paid to the party or parties appearing of record
to be the owner of the premises at the time of the sale, after deducting any
expenses of ascertaining who is such owner.
12.
2.08
LENDER'S OPTION ON FORECLOSURE. At the option of Lender, this Mortgage may
be
foreclosed as provided by law or in equity, in which event a reasonable
attorney's fee shall, among other costs and expenses, be allowed and paid out
of
the proceeds of the sale.
2.09
WAIVER
OF EXEMPTION. Borrower waives all rights of exemption pertaining to real or
personal property as to any indebtedness secured by or that may be secured
by
this Mortgage, and Borrower waives the benefit of any statute regulating the
obtaining of a deficiency judgment or requiring that the value of the premises
be set off against any part of the indebtedness secured hereby.
2.10
SUITS TO PROTECT THE MORTGAGED PROPERTY. Lender shall have power (a) to
institute and maintain such suits and proceedings as it may deem expedient
to
prevent any impairment of the Mortgaged Property by any acts which may be
unlawful or any violation of the Mortgage; (b) to preserve or protect its
interest in the Mortgaged Property and in the income, revenues, rents and
profits arising therefrom; and (c) to restrain the enforcement of or compliance
with any legislation or other government enactment, rule or order that may
be
unconstitutional or otherwise invalid, if the enforcement of or compliance
with,
such enactment, rule or order would impair the security hereunder or be
prejudicial to the interest of Lender.
2.11
BORROWER TO PAY THE PROMISSORY NOTE ON ANY DEFAULT IN PAYMENT: APPLICATION
OF
MONIES BY LENDER. If Default shall be made in the payment of any amount due
under the Promissory Note or Mortgage, then, upon demand of Lender, Borrower
will pay to Lender the whole amount due and payable under the Promissory Note;
and, in case Borrower shall fail to pay the same forthwith upon such demand,
Lender shall be entitled to xxx for and to recover judgment for the whole amount
so due and unpaid together with costs, which shall include the reasonable
compensation, expenses and disbursements of Lender's agents and
attorneys.
2.12
DELAY OR OMISSION NO WAIVER. No delay or omission of Lender or of any holder
of
the Promissory Note to exercise any right, power or remedy accruing upon any
Default shall exhaust or impair any such right, power or remedy, or shall be
construed to be a waiver of any such Default or acquiescence therein; and,
every
right, power and remedy given by this Mortgage to Lender may be exercised from
time to time and as often as may be deemed expedient by Lender.
2.13
NO
WAIVER OF ONE DEFAULT TO AFFECT ANOTHER. No waiver of any Default hereunder
shall extend to or shall affect any subsequent or any other then existing
Default or shall impair any rights, powers or remedies consequent
thereon.
If
Lender
(a) grants forbearance or an extension of time for the payment of any sums
secured hereby; (b) takes other or additional security for the payment thereof;
(c) waives or does not exercise any right granted herein or in the Promissory
Note; (d) releases any part of the Mortgaged Property from the lien of the
Mortgage or otherwise changes any of the terms of the Promissory
13.
Note,
Mortgage or other Loan Documents; (e) consents to the filing of any map, plat
or
replat thereof; (f) consents to the granting of any easement thereon; or (g)
makes or consents to any agreement subordinating the lien or charge hereof,
any
such act or omission shall not release, discharge, modify, change or affect
the
original liability under the Promissory Note, Mortgage or otherwise of Borrower
or any subsequent purchaser of the Mortgaged Property or any part thereof,
or
any maker, co-signer, endorser, surety or guarantor; nor shall any such act
or
omission preclude Lender from exercising any right, power or privilege herein
granted or intended to be granted in the event of any other Default or of any
subsequent Default, nor, except as otherwise expressly provided in an instrument
or instruments executed by Lender, shall the lien of this Mortgage be altered
thereby. In the event of the sale or transfer by operation or law or otherwise
of all or any part of the Mortgaged Property, Lender, without notice to any
person or entity is hereby authorized and empowered to deal with any such vendee
or transferee with reference to the Mortgaged Property or the indebtedness
secured hereby, or with reference to any of the terms or conditions hereof,
as
fully and to the same extent as it might deal with the original parties hereto
and without in any way releasing or discharging any of the liabilities or
undertakings hereunder.
2.14
DISCONTINUANCE OF PROCEEDINGS: POSITION OF PARTIES, RESTORED. In case Lender
shall have proceeded to enforce any right or remedy under this Mortgage by
foreclosure, entry or otherwise, and such proceedings shall have been
discontinued or abandoned for any reason, or shall have been determined
adversely to Lender, then, and in every such case, Borrower and Lender shall
be
restored to their former positions and rights hereunder, and all rights, powers
and remedies of Lender shall continue as if no such proceeding had been taken.
2.15
REMEDIES CUMULATIVE. No right, power or remedy conferred upon or reserved to
Lender by this Mortgage is intended to be exclusive of any right, power or
remedy, but each and every such right, power and remedy shall be cumulative
and
concurrent and shall be in addition to any other right, power and remedy given
hereunder or now or hereafter existing at law or in equity or by statute.
ARTICLE
III
3.01
SUCCESSORS AND ASSIGNS INCLUDED IN PARTIES. Whenever in this Mortgage one of
the
parties hereto is named or referred to, the heirs, personal representatives,
successors and assigns of such party shall be included, and all covenants and
agreements contained in this Mortgage by or on behalf of Borrower or by or
on
behalf of Lender shall bind and inure to the benefit of their respective heirs,
personal representatives, successors and assigns, whether so expressed or not.
3.02
HEADINGS AND PRONOUN AND SINGULAR/PLURAL REFERENCES. The headings of the
articles, sections, paragraphs and subdivisions of this Mortgage are for
convenience
14.
of
reference only, are not to be considered a part hereof, and shall not limit
or
otherwise affect any of the terms hereof. The masculine pronoun, wherever herein
used, shall mean and include the appropriate feminine or neuter pronoun.
Whenever herein used and where appropriate, the singular number shall include
the plural and the plural number shall include the singular.
3.03
INVALID PROVISIONS TO AFFECT NO OTHERS. In case any one or more of the
covenants, agreements, terms or provisions contained in this Mortgage or in
the
Promissory Note or any of the other Loan Documents shall be invalid, illegal
or
unenforceable in any respect, the validity of the remaining covenants,
agreements, terms or provisions contained herein and therein shall be in no
way
affected, prejudiced or disturbed thereby.
3.04
NOTICE TO PARTIES. All notices provided for herein shall be by ordinary mail
addressed to the Lender at the mortgagee’s address at the end of this instrument
or such other address as the Lender may designate in writing, and to the
Borrower at the address of the mortgagor at the end of this instrument or at
such other address as the Borrower may designate in writing.. Notice shall
be
completed by depositing the same in the mail addressed to the party at such
address with the proper amount of postage affixed thereto. Actual receipt of
notice shall not be required to effect notice hereunder.
3.05 LIEN
ON
PERSONAL PROPERTY. This Mortgage creates a lien on and grants a security
interest in the personal property of Borrower described herein which constitutes
part of the Mortgaged Property, and it shall constitute a security agreement
under the Alabama Uniform Commercial Code or other law applicable to the
creation of liens on personal property. Borrower covenants and agrees to
execute, file and refile such financing statements, continuation statements
or
other documents as Lender shall require from time to time with respect to such
personal property. This Mortgage shall constitute a financing statement under
the Alabama Uniform commercial Code with Borrower as the "Debtor" and Lender
as
the "Secured Party", and their respective addresses are set forth in the heading
to this instrument. If an Event of Default occurs, the Lender shall have all
rights and remedies of a Secured Party under the Alabama Uniform Commercial
Code.
3.06 CONFLICT
IN LOAN DOCUMENTS. In the event of conflict in the terms of any provision of
this Mortgage, the Promissory Note, or the Loan Documents, the terms of the
provisions most favorable to the Lender shall apply.
3.07 APPLICABLE
LAW. This Mortgage shall be governed in all respects by the laws of the State
of
Alabama.
IN
WITNESS WHEREOF, Borrower has executed these presents as of the year and day
first set forth above.
15.
|
MAGNETECH
INDUSTRIAL SERVICES OF ALABAMA, LLC
|
||
|
By:
|
/s/ Xxxx X. Xxxxxxx | |
|
Name:
|
Xxxx
X. Xxxxxxx
|
|
|
Title:
|
President
|
|
|
STATE
OF INDIANA
|
)
|
|
|
)
|
||
|
COUNTY
OF ST. XXXXXX
|
)
|
I,
the
undersigned authority, a Notary Public in and for said County in said State,
hereby certify that Xxxx X. Xxxxxxx, whose name as President, of MAGNETECH
INDUSTRIAL SERVICES OF ALABAMA, LLC, a limited liability company, is signed
to
the foregoing instrument and who is known to me, acknowledged before me on
this
day that, being informed of the contents of the instrument, he as such officer
and with full authority, executed the same voluntarily for and as the act of
said corporation.
Given
under my hand and official seal this the 31st day of May, 2006.
| /s/ Xxxxx X. Xxxxx | |
|
Xxxxx
X. Xxxxx, NOTARY PUBLIC
|
|
|
My
Commission Expires: Feb. 09, 2008
|
Mortgagor's
mailing address:
0000
Xxxxx Xxxxxx Xx.,
Xxxxx
Xxxx, Xxxxxxx 00000
Mortgagee’s
mailing address:
000
0xx
Xxxxxx,
00xx
Xxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
This
instrument prepared by:
Ferrell
S. Xxxxxx
XXXXXX,
XXXXXX & XXXXX, P.C.
One
Maison Building
0000
Xxxxxxx Xxxx., Xxx 000
Xxxxxx,
XX 00000
(000)
000-0000
